Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 622

SUPREME COURT OF INDIA
AJAY RASTOGI, ABHAY S. OKA, JJ.
JAYAN – APPELLANT
VERSUS
STATE OF KERALA – RESPONDENT
CRIMINAL APPEAL NO. OF 2021 (ARISING OUT OF SLP (CRIMINAL) NO. 6767 OF 2016)
WITH
VIJAYAN AND ANR. – APPELLANTS
VERSUS
STATE OF KERALA – RESPONDENT
CRIMINAL APPEAL NO. OF 2021 (ARISING OUT OF SLP (CRIMINAL) NO. 6769 OF 2016)
DECIDED ON : 22-10-2021

Advocates Appeared:
For the Petitioner(s):Ankur S. Kulkarni, M. Gireesh Kumar, Vijay Kumar, Advocates
For the Respondent(s):Nishe Rajen Shonker, Abraham C Mathew, Anu K Joy, Alim Anvar, Advocates

IMPORTANT POINTS
(1) Evidence of Independent witness as regards identification of accused in Court cannot be accepted.
(2) Test Identification Parade – T.I Parade is a part of investigation and it is not a substantive evidence – Question of holding T.I Parade arises when accused is not known to witness earlier.

Headnote:
(A) Kerala Abkari Act(Act 1 of 1077) – Section 55(a) – Transportation of Spirit in Truck fitted with fake number plates – Prosecution did not even produce record of RTO in respect of registration of truck – Though chassis and engine number of truck were recorded in mahazar, no investigation was carried out to ascertain correct registration number of offending truck – Identity of truck itself becomes doubtful – Most relevant evidence of record of RTO showing name of registered owner was withheld by prosecution – There is no documentary evidence placed on record to show that accused No. 1 was owner of offending truck at relevant time – There is no other evidence pressed into service by prosecution against accused No.1 – It is a case of no evidence against accused No.1 – There was no justification for convicting accused No. 1 – Independent witness accepted that he is not able to identify any persons whom he had seen 11 years back – Evidence of Independent witness as regards identification of accused in Court cannot be accepted – Prosecution has chosen not to produce evidence regarding correct registration number of truck and name of registered owner thereof – Entire prosecution case becomes doubtful – Impugned judgment and orders set aside and appellants acquitted of offences alleged against them. (Paras 13, 15, 20 and 21)
(B) Criminal Law – Test Identification Parade – T.I Parade is a part of investigation and it is not a substantive evidence – Question of holding T.I Parade arises when accused is not known to witness earlier – Identification by a witness of accused in Court who has for first time seen accused in incident of offence is a weak piece of evidence especially when there is a large time gap between date of incident and date of recording of his evidence – In such a case, T.I Parade may make identification of accused by witness before Court trustworthy – However, absence of T.I Parade may not be ipso facto sufficient to discard testimony of a witness who has identified accused in Court – In a given case, there may be otherwise sufficient corroboration to testimony of witness – In some cases, Court may be impressed with testimony of prosecution witnesses which is of a sterling quality – In such cases, testimony of such a witness can be believed. (Para 15)
Facts of the case:
Additional Sessions Judge convicted the accused Nos.1, 2 and 4 for the offence punishable under Section 55(a) of Kerala Abkari Act. They were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rupees one lakh each. In default of payment of fine, they were sentenced to undergo a simple imprisonment for a period of 6 months each. The Accused Nos.1, 2 and 4 preferred an appeal against order of conviction. The appeal has been dismissed by Single Judge of the Kerala High Court by the impugned judgment.
Findings of Court:
In examination chief, PW12 did not state that he had seen the accused No.2 driving the truck. Even in this case, the evidence of PW12 has been recorded more than 11 years after the date of the incident.
Result : Appeals allowed.

JUDGMENT :

ABHAY S. OKA, J.

1. Leave granted.

2. The appellants in these appeals have been convicted for the offence punishable under Section 55(a) of Kerala Abkari Act (The Abkari Act). The appellant/petitioner in Special Leave Petition No.6767/2016 is the accused No.1. The petitioners/appellants in Special Leave Petition No. 6769/2016 are the accused Nos.2 and 4.

3. The allegation of the prosecution in brief is that the accused (the accused Nos.1 to 4) without any licence transported total quantity of 6090 litres of spirit in 174 plastic cans. The allegation of the prosecution is that the accused No.1 was the owner of the truck by which the spirit was transported. The case is that the said truck bearing registration number KLB-7589 was fitted with fake number plates bearing registration number KLY-730. At the time of the commission of the offence, the truck was being driven by the accused No.2 and that the accused Nos.3 and 4 were accompanying the accused No.2 in the truck.

4. The case of the prosecution is that on 25th July 1999, around 12:30, the said truck was stopped at Mandapathin Kadavu check post for checking. When the truck was stopped and while it was being checked, the accused No.2 suddenly started the truck and drove ahead by damaging the barricade put on the road near the check post. One Shri Balachandran Nair, a peon working at the check post had climbed on the top of the truck for inspecting the goods inside the truck. As the accused No.2 started the truck and went ahead after damaging the barricades, the said Shri Balachandran Nair jumped from the truck and saved himself. The sub-inspector of police at Kattakkada Police Station was alerted about the incident. The said sub-inspector Shri R. Prathapan Nair (PW12) along with the police party proceeded to search the truck. When they located the truck and stopped the same, the accused No.2 who was in the driver’s seat in the truck and the accused Nos.3 and 4 who were present in the truck ran away. The police party, however, apprehended the accused No.2 who allegedly disclosed to them that spirit was loaded in the truck in plastic cans. He also disclosed to the police that the accused No.1 was the owner of the truck who was his brother-in-law. He disclosed that the accused No. 1 was a shop contractor. Even the accused No.4 was apprehended by the police. The police party inspected the truck and seized 6090 litres of spirit which was stored in 174 plastic cans having a capacity of 35 litres each. The police party also found two name plates in the truck bearing registration number KLB-7589. A seizure mahazar was drawn and the truck, the plastic cans and the spirit therein were seized by the police. Thereafter, PW12 returned to the police station and recorded the First Information Report.

5. According to the prosecution case, the accused No.1 was a toddy shop contractor and the other accused were his relatives. It is alleged that the accused No.1 purchased a truck from PW3, Shri Rajendra Prasad and after removing the original number plates on the truck, he fitted number plates bearing registration number KLY-730. The truck was used by the accused No.1 for illegally transporting the spirit from Umasamudram in the State of Tamil Nadu. It is alleged that the samples of the spirit seized by the police were sent for chemical analysis. It is stated that out of 174 samples, sample Nos.1 to 158 and 167 contained a certain percentage of Ethyl Alcohol. Sample Nos. 159 to 166 and 168 to 174 contained spirit and a poisonous substance known as “organophosphorus compound” which is used for pest control.

6. The police could not trace the accused No.3 and therefore, a charge sheet was filed against the accused Nos.1, 2 and 4. The prosecution examined 13 witnesses. The learned Additional Sessions Judge convicted the accused Nos.1, 2 and 4 for the offence punishable under Section 55(a) of the Abkari Act. They were sentenced to undergo rigorous imprisonment for a period of three years and to pay

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